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[2017] ZAGPPHC 110
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Koekemoer v Minister of Police (9326/2015) [2017] ZAGPPHC 110 (10 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Date:
10/3/2017
Case
Number: 9326/2015
REPORTABLE:
NO
OF
INTEREST
TO
OTHER JUDGES: NO
CHRISTOFF
KOEKEMOER
PLAINTIFF
and
MINISTER
OF
POLICE
DEFENDANT
JUDGMENT
MOLEFE
J
[1]
The plaintiff in this action seeks damages against the defendant
arising out of his arrest on 12 August 2014 in Pretoria North,
his
subsequent detention and the resultant withdrawal of the charges
against him on 29 September 2014.
[2]
The plaintiff alleges that his arrest in respect of the charge of
possession of stolen property and his subsequent detention
initiated
by the members of the defendant acting within the course and scope of
their employment with the South African Police
Services ("SAPS")
was unlawful. Plaintiff pleaded that his arrest and detention by the
SAPS officer were unlawful in
that it was effected without a warrant
and did not comply with the laws regulating an arrest without a
warrant and further that
it was effected arbitrarily.
[3]
The defendant denies that the arrest and detention were unlawful and
avers that the defendant acted in terms of section 40 (1)
(e) of the
Criminal Procedure Act 51 of 1977 ("CPA") when affecting
the arrest. This section provides that a person found
in possession
of property reasonably suspected to have been stolen or acquired by
dishonest means can be arrested without a warrant.
The defendant
pleaded that the plaintiff was arrested by Constable Moseme for
allegedly committing an offence of possession of
suspected stolen
property in contravention of section 36 of the General Amendment Act,
Act 62 of 1955 which provides that:
Failure
to give a satisfactory account of possession of goods
"
Any
person who is found in possession of any goods, other than stock or
produce as defined in
Section
1
of
the
Stock
Theft
Act,
1959
(Act
57
of
1959)
in
regard
to
which
there
is
a
reasonable suspicion that they have been stolen and is unable to give
a satisfactory account of
such
possession,
shall
be
guilty
of
an
offence
and
liable
on
conviction
to
the
penalties
which may be imposed on a conviction of theft
[1]
".
[4]
Section 40 (1) (b) of the CPA provides that a peace officer may
without a warrant arrest any person whom he reasonably suspects
of
having committed an offence listed in Schedule 1. There is no doubt
that the crime of possession of suspected stolen goods that
was
investigated and for which the plaintiff was arrested is listed in
Schedule 1 of the CPA.
[5]
It is common cause that the plaintiff was on 12 August 2014 arrested
by the SAPS officers without a warrant at Just Metals Scrapyard
where
he is employed as a workshop manager. He was detained in the police
cells at Pretoria North Police Station and was released
on the same
day at approximately 17h30.
It
is further common cause that the charges against the plaintiff were
withdrawn on 29 September 2014 as the investigating officer
found
that the plaintiff's explanation of how he got into possession of the
copper was reasonable.
[6]
The issues to be determined by the court are:
6.1
1 was the plaintiff's arrest and detention lawful or unlawful?
6.2
if unlawful, the quantum of the plaintiff's damages.
The
burden to prove that the arrest was justified and not wrongful rest
upon the defendant and the duty to begin was by agreement
between the
parties imposed upon the defendant.
[7]
Constable Lehlohonolo Mosebe testified on behalf of the defendant. He
testified that on 12 August 2014, he, together with his
team were
making routine inspections of scrapyards and was posted by Warrant
Officer de Witt to do a routine check at Just Metals
Scrapyard in
Pretoria North. They arrived there at 11h40 and requested the
plaintiff to allow them to tour the premises for the
inspection.
During the inspection they found copper cables packed and stored at
the premises. Mosebe asked the plaintiff to explain
the origin of the
copper cables and to produce the documents relating to the cables but
the plaintiff failed to explain to Mosebe
the origin of the copper
cables nor to produce the documents relating to the cables. One of
the team members, Mr Frans Puta allegedly
from Eskom informed Mosebe
that the cables were used by Eskom and that scrapyards were not
allowed to purchase them.
Mosebe
testified that he then had reasonable suspicion that the copper
cables were stolen and he arrested the plaintiff as the plaintiff
was
unable to neither provide an explanation of the possession nor to
provide the relevant documentation. Mosebe further testified
that he
was the arresting officer and not Warrant Officer de Witt. Plaintiff
was taken to Pretoria North police station where he
was detained in
the police cells. Under cross-examination Mosebe testified that he
weighed the copper cables and not de Witt but
he could not explain
why de Witt's signature appeared on the purchase note of the relevant
cables.
[8]
Plaintiffs version of the events leading to his arrest was that on 12
August 2014 at approximately 10h15, six armed police officers
in
uniform in four marked police vehicles arrived at Just Metals
Scrapyard. Warrant officer de Witt informed him that he was in
charge
of the routine inspection of the scrapyard and informed the plaintiff
that they are going to arrest the plaintiff. During
their search they
found a bag of shiny copper cables and a Mr Puta who was accompanying
the police informed the plaintiff that
the cables were illegal as
they belonged to Eskom. De Witt requested the documents and the
register in terms of the
Second Hand Dealers Act
6
of 2009
with the particulars regarding the acquisition or
disposal of the second hand copper cables. Plaintiff testified that
he got the
purchase notes of the copper cables but when he handed
them to de Witt, he refused to accept the documents. The copper was
weighed
at 319 kg at the scrapyard premises and de Witt arrested the
plaintiff for possession of stolen copper cables. Plaintiff testified
that the copper cables found at the scrapyard was commonly used by
electricians and could be purchased anywhere. The plaintiff
was taken
to Pretoria North Police Station in a police vehicle and was detained
in a police cell with no rest rooms with eight
other inmates. He was
released on the same day at approximately 17h30.
[9]
Plaintiff testified that his arrest and detention and having been
accused of possession of suspected stolen copper cables was
painful
and embarrassing and his dignity was degraded. Under
cross-examination the plaintiff denied that Constable Mosebe was the
arresting officer but testified that the Warrant Officer was the
arresting officer and that Mosebe was on that day, just a by-stander.
Mutually
Destructive Versions
[10]
The versions of the plaintiff and the defendant are irreconcilable in
material aspects regarding how the arrest was made and
are mutually
destructive. The plaintiff s version is that Warrant Officer de Witt
was in charge of the inspection and was the arresting
officer and he
refused to accept the documentation from the plaintiff.
The
defendant's version is that Constable Mosebe was the arresting
officer and that the plaintiff refused to produce the documentation
to explain possession of the copper cables.
[11]
The
technique
generally
adopted
by the
courts
in
resolving
factual
disputes
when
dealing
with
two
irreconcilable
versions
is
set
out
in
Stellenbosch
Farmers'
Winery'
Group Limited and Another
v
Martell ET
Cie
and others
[2]
.
The
court should
make
findings
on
the
credibility and reliabil
i
ty
of
factual
witnesses
and on
the
assessment of probabilities.
An
evaluation on the probability or improbability of each party's
version should be determined on the disputed issues. After
the
assessment the
court
will
determine
whether
the
party
burdened
with
the
onus
of
proof,
has
succeeded in
discharging
it.
[12]
The defendant's version is in my view flawed and unreliable in that
it does not make sense that De Witt was not present at
the inspection
although his signature is on the purchase note dated 12 August 2014
at 12h06 when the copper was booked out from
the scrapyard.
Furthermore, it is highly improbable that the plaintiff would refuse
to give an explanation and documentation of
the origin of the cables
to the arresting officer whilst faced with a possible arrest.
I
therefore find the plaintiff's version on how the arrest occurred to
be more probable.
[13]
An arresting officer is required to form a reasonable suspicion of a
commission of an offence before arresting an individual,
which arrest
effectively deprives the individual of his liberty. The question
whether Constable Mosebe or/and Warrant Officer de
Witt had a
reasonable suspicion in the circumstances that plaintiff committed
the offence must be considered by taking into account
that:
"Suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking: 'I suspect but cannot prove'.
Suspicion
arises at or near the starting point of an investigation of which the
obtaining of prima facie proof is the end
[3]
[14]
The arresting officer in this case refused to accept the
documentation from the plaintiff which would have explained the
acquisition
of the suspected stolen cables. It is common cause that
the investigating officer, Sergeant Ngobeni found that Mr Puta is
neither
an expert nor an Eskom employee but is an independent
contractor and could not give expert evidence on the identity and the
exact
value of the cables. Sergeant Ngobeni found that the
plaintiff's explanation of how he got to be in possession of the
copper is
reasonable and that there were no prospects of a successful
prosecution against the plaintiff.
[15]
In my view, the arresting officer
in
casu,
had no sufficient grounds for the reasonable suspicion that the
plaintiff has committed the offence. The arresting officer had a
duty
to make enquiries about the acquisition of the copper, to assess and
analyse the information at his disposal before the arrest
and he
failed to do so. The suspicion that the plaintiff was in possession
of suspected stolen goods was in my view not based on
reasonable
grounds and was therefore unlawful.
Quantum
of Damages
[16]
When
assessing
damages
in matters
such
as the
present,
the
evaluation
of the
personal circumstances
of the
plaintiff, the circumstances
around the
arrest and the nature and duration of the detention is taken into
account
[4]
.
The
testimony of the
plaintiff
about his personal experiences, the conditions that prevailed in the
police cells and what effect the arrest had on him
is also taken into
account. The plaintiff, a workshop manager, was 36 years old when he
was arrested and was detained for approximately
five and a half
hours.
[17]
The purpose of an award for general damages
in the
context
of
matters such as the present
is to
compensate the claimant for deprivation
of personal
liberty and
freedom
as well
as the
mental
anguish
and
distress.
The
primary purpose is not to enrich the claimant but to offer him or her
solatium
for his
or her injured feelings
[5]
.
[18]
Although
the determination
of an
appropriate amount of damages
is largely
a matter of discretion,
some
guidance
can
be obtained
by
having
regard to
previous
awards
made
in
comparable
cases.
Plaintiff's
counsel
referred
me to the
relevant
comparisons
made in
Minister
of Safety and Security
v
Seymour
[6]
:
"The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The
facts of a
particular case need to be looked at as a whole and few cases are
comparable. They are a useful guide to what other
courts have
considered to be appropriate but they have no higher value than
that".
[19]
As indicated above, awards made in previous cases can only serve as
guidelines. An appropriate award will ultimately depend
on the
particular facts and circumstances of each case. I have taken into
account the circumstances of the arrest, the duration
of the
detention, the indignity of being confined in a police cell, the
personal circumstances of the plaintiff, the awards made
in previous
comparable cases and the gradual devaluation of the currency. Taking
into account all the circumstances in this case,
I deem R30 000, 00
to be a just and fair amount of damages for the plaintiff.
Costs
[20]
Although the claim in the summons is R100 000, 00 which is a quantum
of damages which falls within the Magistrate's court monetary
jurisdiction, the plaintiff seeks costs on the High Court scale.
Plaintiff counsel submits that the plaintiff's constitutional
rights
were violated and that justified the institution of proceedings in
the High Court, although the quantum of the damages falls
within the
magistrate court monetary jurisdiction.
[21]
The purpose of the costs order is to indemnify a party for the
expenses to which he has been put through of having to institute
or
defend the action. The fundamental rule is that the award of costs is
always within the discretion of the court. Even the general
rule that
costs follow the event or result, is subject to the overriding
principle that the court has a judicial discretion in
awarding costs.
[22]
In
van
der
Merwe
v
Schraader
[7]
it
was
decided
that
a
party
who
sues in
the High
Court
for
an amount
that falls
within
the
jurisdiction of a
Magistrate's
court,
may be
awarded
costs
in the
High
Court
scale,
depending
on
the
circumstances.
In this
case,
despite the
fact
that
the
amount
claimed
in the
summons
was
clearly
within
the
Magistrate's
court
monetary
jurisdiction,
the
summons
were
issued
in the
High Court.
[23]
Far too many cases are brought to the High Court with
the sum initially claimed falling
comfortably
within the District Magistrate and Regional court
monetary jurisdiction. This practice should
be discouraged by sending
a clear message to legal practioners to give careful considerations
to this aspect before proceedings
are instituted. Although the
plaintiff has attained a measure of success, I am of the view that
this action should not have
been brought in this court in the first
place. In the circumstances, I decline to award costs on the
High Court scale.
[24]
In the result, the following order is made:
24.1
The defendant
is ordered
to pay
the plaintiff
an amount
of R30
000.00
for unlawful
arrest
and
detention;
24.2
interest on the amount shall run
at the
prescribed
rate
from date of judgment to date of payment;
24.3
the defendant
is
ordered
to
pay
costs of
the
action
on
a
magistrate
court scale.
_____________________
D
S MOLEFE
JUDGE
OF
THE HIGH
COURT
APPEARANCES:
For
the Appellant
: Adv. J Groenewald
Instructed
by
: Prinsloo Attorneys Inc.
For
the Respondent : Adv. C
Lithole
Instructed
by
: State Attorneys
Date
Heard
:15, 16 and 24 February 2017
Date
Delivered
: 10 March 2017
[1]
Section 36 amended by
section 4
of Act
1
8
of
1
996
[2]
2003 (
1
)
SA 11SCA at paragraph 5.
[3]
Shabaan
Bin
Hussien and Other v Chong Fook
Kam and
Another
[
1
969]
3 ALL
ER
1
626
(PC)
at
1
630.
[4]
See Ngcobo v Minister of Police
1
978
(4) SA 930
D at 935 B-F.
[5]
Minister of Safety v Tyulu
2009 (5) SA 85
(SCA) at par 26.
[6]
2006 (6) SA 320
(SCA) at 325 par
1
7.
[7]
1
953
(2) SA 339
(E)